Familia v 300 Cortelyou Realty Corp.

Supreme Court, Richmond County

Decided on March 17, 2026

Index No. 151333/2024

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following papers were considered on plaintiff's motion for summary judgment on the issue of liability pursuant to CPLR § 3212 and to strike certain affirmative defenses pursuant to [*2]CPLR § 3211 [b]: the Notice of Motion; the Affirmation of Albert Cohen, Esq., dated February 12, 2026, with exhibits annexed thereto, including the deposition transcripts of Becir "Benny" Cosaj, Fazij Cosaj, Romeo Alexander Familia, Sadik Cosaj, Carissa Romano, and Sahadet Cosaj; the Affirmation of Romeo Alexander Familia; the Affirmation of Carissa Romano, together with annexed exhibits, including photographs and attorney correspondence dated March 4, 2024 and March 25, 2024; the Affirmation of Richard Robbins, Registered Architect; the Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment on the Issue of Liability; the pleadings; and the prior proceedings had herein, including this Court's prior determination granting plaintiff leave to amend the complaint to assert a claim for punitive damages. Oral argument was conducted on the motion on March 17, 2026, in person at the courthouse.

II. Findings of Fact

This action arises from a trip-and-fall occurrence on April 20, 2024, along the rear exterior walkway of the premises known as 300 Cortelyou Avenue, Staten Island, New York. The record establishes that the premises is a multiple dwelling owned and controlled by defendants 300 Cortelyou Realty Corp. and Fazij Cosaj, and that the rear walkway at issue functioned as a means of ingress and egress for tenants and visitors. The motion record further establishes that defendants owned the building for more than twenty years and operated it as an income-producing residential property.

The evidentiary submissions present a detailed picture of the manner in which the property was managed. According to the cited deposition testimony set forth in the motion papers, the titled owners were minimally involved in inspection, maintenance, or repair oversight. Building operations and maintenance responsibilities were delegated to unpaid family members. The record reflects the absence of maintenance logs, inspection checklists, written repair protocols, formal safety procedures, or any documented system for identifying, monitoring, and correcting hazardous conditions affecting pedestrian travel paths. The cited testimony further reflects that neither owner identified any organized or periodic system for inspecting walkway conditions and that the owners lacked training in property maintenance or safety inspection standards.

The rear exterior walkway condition itself is established in the record through sworn witness submissions, photographs, deposition testimony, and expert proof. Plaintiff affirmed that for several years before his accident the rear exterior walkway contained dangerous conditions, including deteriorated pavers and a visibly depressed metal grate embedded within the walking surface. He further affirmed that the walkway was regularly used by tenants and visitors and that, out of concern for the safety of his fiancÉe's elderly mother, who resided in the building, he complained on three occasions before his fall to the owners or those acting on their behalf regarding the unsafe condition of the walkway. Plaintiff specified that those complaints concerned the neglected state of the rear path, including debris and garbage accumulation, lack of basic exterior upkeep, uneven and deteriorated pavers, and the depressed metal grate, all of which he identified as creating an ongoing tripping hazard. He further averred that those complaints were made years before his accident and that no meaningful repair, remediation, or safety improvement followed.

Plaintiff's account is materially corroborated by the submission of Carissa Romano. Ms. Romano averred that on February 20, 2024, approximately two months before plaintiff's [*3]accident, she slipped and fell on the same rear exterior walkway in the same area where plaintiff later fell. She stated that snow and ice had accumulated on and around the metal grate at that time and that the area was poorly lit, making it difficult to perceive the walking surface and the condition of the ground. She further averred that on March 1, 2024, she personally photographed the rear exterior walkway and that those photographs fairly and accurately depicted the condition of the walkway and grate area as they then appeared, including the broken paver and depressed metal grate. She expressly identified the photographed location as the same rear exterior walkway and same area where both accidents occurred.

The record further establishes written notice to defendants before plaintiff's accident. Ms. Romano averred that her attorney sent written notices dated March 4, 2024 and March 25, 2024 to 300 Cortelyou Realty Corp., care of Becir Cosaj, at the address designated for legal correspondence, concerning her February 20, 2024 fall and the dangerous condition present along the rear exterior walkway, including the area of the metal grate where she was injured. She further averred that she reviewed those letters at or about the time they were sent, understood that they related to her fall and claim, and could identify them as true and accurate copies of the correspondence sent on her behalf. Those letters are annexed to her submission. The motion papers further reflect that, despite the prior accident and those written notices, no repairs or remediation were made to the rear exterior walkway after Ms. Romano's fall and before plaintiff's accident on April 20, 2024.

The deposition proof recited in the submissions deepens the picture of notice and nonresponse. As set forth in the motion papers, Sahadet Cosaj received the legal notice relating to Ms. Romano's accident but did not meaningfully review it, did not investigate the incident, did not prepare an incident report, did not photograph the area, and did not contact any contractor or safety professional in response. The submissions further recount that the handyman responsible for maintaining the property was not advised by the owners of Ms. Romano's fall and learned of the matter only through the insurance company. The motion papers also recount testimony that one of the owners was informed that there had been two falls by the same family at the same place, yet did not inquire as to the cause of the incidents, did not inspect the accident location, and did not direct repairs.

The expert proof submitted by plaintiff is specific, measured, and unrebutted. Plaintiff's expert, Registered Architect Richard Robbins, inspected the accident location on June 27, 2024. According to the motion papers, Robbins measured a one-and-one-quarter-inch vertical differential between the depressed corner of the metal vault cover and the adjoining sidewalk surface at the point where plaintiff tripped. He also measured a two-inch vertical differential at the broken brick pavers adjacent to the vault cover, where plaintiff landed. Robbins further observed that the exterior light fixture serving that area was not functioning at the time of the accident, leaving the walkway in darkness. He concluded, to a reasonable degree of architectural certainty, that both differentials were excessive, that the condition constituted a serious trip hazard in the direct path of pedestrians, and that the hazard far exceeded the maximum safe variations in level recognized by the standards he cited. Robbins further opined that the condition violated Multiple Dwelling Law § 78, New York City Administrative Code § 27-2005 [a], and New York City Building Code § 28-301.1. He additionally relied upon ASTM F 1637-95, Standard Practice for Safe Walking Surfaces, which, as described in the submissions, requires walking surfaces to be stable, planar, flush, and even to the extent possible, requires adjoining surfaces to be made flush and fair, requires level changes greater than one-half inch to [*4]be transitioned by a ramp or stairway, and identifies broken, depressed, raised, uneven, or cracked exterior walkway pavement as substandard and in need of repair. Defendants submitted no opposing expert affidavit challenging Robbins's measurements, methodology, observations, or conclusions.

As to the occurrence itself, plaintiff averred that on April 20, 2024 the rear exterior walkway was pitch black, with no functioning lighting illuminating the walking surface. He further averred that, although he attempted to walk carefully, he could not see the surface in front of him because of the complete lack of lighting. He stated that as he walked along the rear exterior walkway his foot caught on the edge of the depressed metal grate embedded in the walking surface, that he lost his balance, and that he fell, striking his knee on the adjacent broken and uneven paver. He described the depressed grate and the adjacent broken paver as part of the same continuous hazardous condition. The motion papers further recount plaintiff's deposition testimony that the light fixture visible in photographs was never operational, that the walkway was "pitch black," that he was looking down as he walked but could see "nothing," and that his foot caught on the edge of the depressed grate before he fell onto the adjacent broken paver area.

The record also establishes that plaintiff sustained serious injuries as a result of the fall. Plaintiff averred that he suffered fractures and internal injuries to his knee and ankle, requiring surgical intervention. The motion papers recount that plaintiff later underwent arthroscopic ankle surgery and arthroscopic knee surgery. Those damages issues are not presently before the Court except insofar as they confirm that the defect and resulting occurrence were substantial and not trivial in practical effect.

The Court further finds on this record that the hazardous condition was long-standing, visible, and remediable, that defendants received direct oral complaints and written notice concerning the area before plaintiff's fall, and that no meaningful effort was undertaken to inspect, repair, warn, document, or temporarily safeguard the walkway before plaintiff was injured. The motion papers additionally recount that after plaintiff's accident the broken paver was repaired the same day using replacement materials already available to the property handyman, underscoring that the condition was not only remediable, but readily so.

III. Conclusions of Law

The Court begins with the familiar principles governing summary judgment. A movant must establish prima facie entitlement to judgment as a matter of law by tendering evidence sufficient to eliminate any material issues of fact. Failure to make that showing requires denial of the motion regardless of the adequacy of the opposition, as held in Winegrad v New York Univ. Med. Ctr., (64 NY2d 851 [1985]), and Alvarez v Prospect Hosp., (68 NY2d 320 [1986]). Once the movant has satisfied that burden, the opposing party must come forward with evidentiary proof in admissible form sufficient to require a trial of material questions of fact, as held in Zuckerman v City of New York, (49 NY2d 557 [1980]). Bald conclusions, conjecture, or the mere "shadowy semblance" of an issue will not suffice (see Zuckerman supra, 49 NY2d 557 [1980], Gelb v Bucknell Press, Inc., 69 AD2d 829 [2d Dept 1979], Ortiz v Fage USA Corp., 69 AD3d 914 [2d Dept 2010], Belle Light. LLC v Artisan Constr. Partner LLC, 178 AD3d 605 [1st Dept 2019], and Carmona v Preston, 231 AD3d 702 [2d Dept 2024]). Although summary judgment is a drastic remedy, it is the appropriate remedy where the evidentiary record permits [*5]only one rational conclusion, as recognized in Brill v City of New York, (2 NY3d 648 [2004]). Further, CPLR § 3212 [c] expressly authorizes the Court to determine liability as a matter of law and leave only damages for trial where no triable issue remains as to fault.

Applying those principles, plaintiff has established prima facie entitlement to judgment on liability. Under New York law, a landowner or party in possession and control of real property owes a duty to maintain the premises in a reasonably safe condition under all the circumstances (see Basso v Miller, 40 NY2d 233 [1976], Kellman v Tiemann Assocs., 87 NY2d 871 [1995], Kyte v Mid-Hudson Wendico, 131 AD3d 452 [2d Dept 2015]). In this case, that common-law duty is reinforced by statutory obligations applicable to multiple dwellings. Multiple Dwelling Law § 78 provides that every multiple dwelling and every part thereof shall be kept in good repair, and the Court of Appeals has held that this statutory command imposes a duty upon the landlord to maintain the premises in a reasonably safe condition, as stated in Juarez v Wavecrest Mgt. Team, (88 NY2d 628 [1996], quoting Mas v Two Bridges Assocs., 75 NY2d 680 [1990]). Plaintiff's motion also relies upon New York City Administrative Code § 27-2005 [a], requiring the owner of a multiple dwelling to keep the premises in good repair, and New York City Building Code § 28-301.1, requiring the owner at all times to maintain the building and its facilities in a safe and code-compliant manner. Those duties are nondelegable in character. Thus, defendants could not discharge them merely by entrusting maintenance functions informally to unpaid relatives, nor could they avoid responsibility by professed non-involvement in day-to-day conditions Juarez, supra, at 88 NY2d 628 [1996]).

The record establishes breach of those duties as a matter of law. Plaintiff's expert measured a one-and-one-quarter-inch depression at the metal grate and a two-inch differential at the adjacent broken pavers, both within the direct path of pedestrian travel, and further documented that the area was unlit because the exterior light fixture was not functioning. The expert concluded that these conditions constituted excessive vertical differentials and a serious trip hazard and that they violated Multiple Dwelling Law § 78, Administrative Code § 27-2005 [a], and Building Code § 28-301.1. Municipal code violations are not negligence per se in this context, but they are competent evidence of negligence (Elliott v City of New York, 95 NY2d 730 [2001]). Here, that evidence is coupled with uncontroverted expert proof demonstrating that the condition was unsafe by accepted safety standards and that it existed in a pedestrian ingress-and-egress route. The motion papers also cite Black v Aurora Contractors, Inc., (2020 NY Slip Op 32909[U] [Sup Ct, Richmond County 2020]), in which summary judgment on liability was granted where unrebutted expert proof established that a walkway height differential violated Building Code § 28-301.1. While that authority is not binding, its reasoning is persuasive and consonant with the present record, where the expert proof is detailed, the defect is measured, and no opposing expert evidence has been supplied.

The record also establishes defendants' actual notice as a matter of law. Plaintiff affirmed that he made three complaints before his accident concerning the unsafe rear exterior walkway, identifying the depressed metal grate, uneven pavers, and neglected conditions along the path. Ms. Romano fell in the same area approximately two months before plaintiff's accident. Her attorney then sent two written notices, dated March 4, 2024 and March 25, 2024, concerning that prior fall and the dangerous condition of the walkway. The record, as recited in the motion papers, further shows that those notices were received, yet no meaningful investigation followed, no report was prepared, no photographs were taken, no contractor or safety professional was consulted, and no repair or warning was implemented before plaintiff's accident. The motion [*6]papers also recount testimony that one of the owners knew there had been two falls by the same family at the same location but did not ask what had caused the incidents and did not undertake an inspection. That evidence establishes far more than a generalized awareness of property maintenance issues. It demonstrates direct, specific, repeated notice of the very area and condition alleged to have caused plaintiff's fall. The authorities cited in plaintiff's papers, including Lezama v 34-15 Parsons Blvd, LLC, (16 AD3d 560 [2d Dept 2005]), and Steed v MVA Enters., LLC, (136 AD3d 793 [2d Dept 2016]), are consistent with the conclusion that actual notice is established where a defendant is specifically informed of the hazardous condition and fails to remedy it.

Causation is likewise established on this record. Plaintiff testified that his foot caught on the edge of the depressed grate and that he then fell onto the adjacent broken paver. That mechanism of injury is entirely consistent with the measured condition of the walkway, the photographs, the prior accident evidence, and the expert opinion identifying the grate depression and adjacent paver differential as serious trip hazards in the pedestrian path. The unlit condition of the walkway did not interrupt causation; rather, it magnified the danger posed by the physical defect by concealing it from view. On this record, the depressed grate, the uneven pavers, and the absence of illumination formed a single hazardous condition that was a substantial factor in bringing about plaintiff's fall. No competing expert opinion or alternative factual narrative sufficient to generate a triable issue has been offered.

The Court further concludes that the defense that the defect was trivial or de minimis is unsustainable. Whether a defect is actionable does not depend exclusively on measurements but on the peculiar facts and circumstances of the case, including the dimensions, appearance, irregularity, and surrounding conditions (see Trincere v County of Suffolk, 90 NY2d 976 [1997], Sykes v County of Erie, 94 NY2d 912 [2000], and Hutchinson v Sheridan Hill House Corp., 26 NY3d 66 [2015]). Here, however, both the dimensions and the surrounding circumstances militate decisively against triviality. The defect was not a slight, smooth, isolated variation in grade. It was a one-and-one-quarter-inch depression at a metal grate adjacent to a two-inch broken paver differential, in a darkened walkway used for ingress and egress, in an area that had already been the subject of prior complaints, written notice, and a prior fall. The photographs depict an irregular, deteriorated walking surface, and plaintiff's expert characterized the condition as a serious trip hazard. Under the totality-of-the-circumstances analysis required by Trincere, Sykes, and Hutchinson, no reasonable view of this record supports a conclusion that the defect was trivial.

Nor does any suggestion of comparative negligence defeat plaintiff's motion. The Court of Appeals held in Rodriguez v City of New York, (31 NY3d 312 [2018]), that a plaintiff need not establish the absence of comparative fault in order to obtain summary judgment on liability. Comparative negligence, if supported by competent proof, goes only to apportionment and damages, not to whether defendants were negligent as a matter of law. In any event, the present record, as supplied, does not disclose admissible proof sufficient to create a triable issue capable of defeating liability relief. Plaintiff's testimony that he attempted to walk carefully but could not see the walking surface because the area was pitch black is not a basis to deny the motion; it is consistent with the very dangerous condition the record establishes defendants allowed to persist.

The branches of the motion directed at the affirmative defenses are also properly granted. CPLR § 3211 [b] authorizes dismissal of a defense that is not stated or has no merit. Boilerplate [*7]defenses, bare legal conclusions, and duplicative or unsupported assertions are subject to dismissal (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76 [1st Dept 1999], Petracca v Petracca, 305 AD2d 566 [2d Dept 2003], Commissioners of the State Ins. Fund v Ramos, 63 AD3d 453 [1st Dept 2009], and Bank of Am., N.A. v 414 Midland Ave. Assocs., LLC, 78 AD3d 746 [2d Dept 2010]). On the record supplied, the challenged affirmative defenses are either conclusory, duplicative, or contradicted by the developed evidentiary record. The First affirmative defense, described in the motion papers as a kitchen-sink recitation of doctrines unsupported by factual allegations, is legally insufficient. The Third and Thirteenth defenses, sounding in culpable conduct, assumption of risk, and de minimis defect, fail for the reasons already stated. The Fourth defense alleging failure to state a cause of action is without merit where the complaint plainly states a cognizable premises liability claim and the present record affirmatively substantiates it, as recognized in Rosenfeld v Rosenblum, (176 AD2d 645 [1st Dept 1991]). The remaining challenged defenses identified in the motion papers are likewise unsupported by the evidentiary record now before the Court and therefore should be stricken.

Finally, the Court is satisfied that this determination does not require impermissible weighing of credibility or resolution of genuinely competing inferences. The salient material facts are established by sworn submissions, photographs, deposition testimony, documentary notice, and unrebutted expert analysis. Defendants were required under Zuckerman, (supra, at 49 NY2d 557 [1980]), to produce evidentiary proof in admissible form sufficient to demonstrate a genuine factual dispute. On the record supplied, no such dispute appears as to ownership, control, dangerous condition, notice, breach, or causation. The only remaining issue is the amount of damages. CPLR § 3212 [c] therefore applies with full force.

IV. Conclusion and Decretal Paragraphs

For all of the foregoing reasons, the Court finds that plaintiff has established, as a matter of law, that defendants failed to maintain the subject premises and rear exterior walkway in a reasonably safe condition in violation of their common-law duty and their statutory obligations under Multiple Dwelling Law § 78, New York City Administrative Code § 27-2005 [a], and New York City Building Code § 28-301.1; that defendants had actual notice of the depressed metal grate, broken adjacent pavers, and unlit walkway before plaintiff's accident; that defendants failed to remedy, investigate, or warn against that condition; and that such failures were a proximate cause of plaintiff's accident and injuries. The Court further finds that the challenged affirmative defenses are without merit or insufficiently stated and must be stricken.

Accordingly, it is

ORDERED that plaintiff's motion pursuant to CPLR § 3212 for summary judgment on the issue of liability is granted; and it is further

ORDERED that plaintiff's motion pursuant to CPLR § 3211[b] to dismiss the First, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Twelfth, and Thirteenth affirmative defenses is granted, and those affirmative defenses are hereby stricken; and it is further

ORDERED that the issue of damages alone shall remain for trial; and it is further

ORDERED that any relief requested but not expressly granted herein is denied.

This constitutes the Decision and Order of the Court.

Dated: March 17, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT